Com. v. Dane Entertainment Services, Inc. (No. 1)

• Decision Date: 15 August 1983
• Docket Number: No. 1,1
• Parties: COMMONWEALTH v. DANE ENTERTAINMENT SERVICES, INC. ().
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1126

452 N.E.2d 1126

389 Mass. 902

COMMONWEALTH v. DANE ENTERTAINMENT SERVICES, INC. (No. 1).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 1983.

Decided August 15, 1983.

Lee Carl Bromberg, Boston (Freda Fishman, Boston, with him), for defendant.

Patrick J. Roache, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant was charged in two complaints with possessing obscene matter with intent to disseminate it, in violation of G.L. c. 272, § 29. ¹ Each complaint was based on a film, one called "On White Satin," the other, "Gangster Girl," shown at the defendant's movie theatre. The complaints were tried together before a jury, which returned a verdict of guilty with respect to "On White Satin," and not guilty with respect to "Gangster Girl." On appeal, the defendant argues that the judge erred in denying its motions to dismiss the complaint, to suppress the film, and for relief from prejudicial joinder. The defendant also objects to several of the judge's evidentiary rulings. We transferred the case to this court on our own motion. We affirm.

1. The defendant argues that the complaint should have been dismissed because G.L. c. 272, § 31, is unconstitutionally vague. We have repeatedly held that § 31 is constitutional, see Commonwealth v. United Books, Inc., 389 Mass. 888, 453 N.E.2d 406 (1983), but have left open "resolution of any challenge to the statute by proof that there is no such thing as sexual conduct which is patently offensive with reference to contemporary Commonwealth norms, or ... 'contemporary standards of the commonwealth' ... Of course, if such standards do not exist, the statute must fail for unconstitutional vagueness." Commonwealth v. Trainor, 374 Mass. 796, 800, 374 N.E.2d 1216 (1978).

The defendant contends that there is "no such thing as ... sexual conduct which is patently offensive with reference to contemporary Commonwealth norms," Commonwealth v. Trainor, supra, because of the widespread availability and acceptance of X-rated materials for an audience of consenting adults only. It relies in part on Commonwealth v. Horton, 365 Mass. 164, 176, 310 N.E.2d 316 (1974) (Hennessey, J., concurring), taking notice of "abundant empirical evidence that the community has tolerated increasingly permissive displays of pornographic literature and X-rated movies.... It is not surprising if ... the defendants ... concluded that the national standard superimposed on our local law had reached a state of almost unlimited permissiveness." Horton is inapposite because it considers the Massachusetts obscenity law as it existed prior to Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which law used a national standard and failed to define adequately "hard-core pornography." Commonwealth v. Horton supra 365 Mass. at 173-176, 310 N.E.2d 316. Horton makes no suggestion that the current obscenity statute (which does not require a "national standard superimposed on our local law," and which specifically defines "sexual conduct"), does not provide adequate warning to defendants.

The defendant asserts that "X-rated theatres throughout Massachusetts screen films daily for substantial audiences of consenting, paying adults," including the film "On White Satin." Even considering the proffered testimony of Donald Willcox, discussed infra, the fact that many citizens of the Commonwealth view a variety of X-rated materials does not persuade us "that there is no rational basis for the Legislature to conclude that there are ascertainable Statewide standards." Commonwealth v. Trainor, 374 Mass. 796, 800, 374 N.E.2d 1216 (1978). Nor does the recent amendment of G.L. c. 272, § 31, by St.1982, c. 603, § 7, from a Statewide to a countywide standard indicate that the prior standard was irrational or nonexistent. For the reasons discussed in Commonwealth v. United Books, Inc., supra, 389 Mass. at 892, 453 N.E.2d 406, we also reject the defendant's claim that the differing verdicts in the trial below show that there are no Statewide standards, and that the Commonwealth must introduce extrinsic evidence of community standards. Accordingly, the defendant's motion to dismiss the complaint was properly denied.

2. The defendant next argues that the film "On White Satin" should have been suppressed because the search warrant authorizing its seizure was obtained in violation of Federal copyright law. The argument depends on the reasoning that the affidavit describing the film, which served as the basis for the warrant, was an unauthorized "derivative work." 17 U.S.C. § 101 (Supp. IV 1980). This contention is frivolous, and we reject it. Moreover, we question whether infringement of a copyright violates an expectation of privacy protected by the Fourth Amendment to the United States Constitution.

The defendant argues further that the affidavit describing "On White Satin" was insufficient to establish probable cause to believe that the film was obscene, and consequently the search warrant issued on the strength of the affidavit was invalid, and the film should have been suppressed. Because of the possibility of interference with protected materials, police seizure of allegedly obscene books and films "calls for a higher hurdle in the evaluation of reasonableness." Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757 (1973). See Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965); Marcus v. Search Warrant of Property at 104 E. Tenth St., 367 U.S. 717, 730-733, 81 S.Ct. 1708, 1715-1717, 6 L.Ed.2d 1127 (1961). Thus, before police obtain a warrant to seize a film, a magistrate must have an opportunity "to focus searchingly on the question of obscenity." Marcus v. Search Warrant of Property at 104 E. Tenth St., supra at 732, 81 S.Ct. at 1716. Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (1968) (per curiam). United States v. Middleton, 599 F.2d 1349, 1354-1355 (5th Cir.1979). Commonwealth v. Mascolo, 6 Mass.App. 266, 270, 375 N.E.2d 17 cert. denied, 439 U.S. 899, 99 S.Ct. 265, 58 L.Ed.2d 247 (1978).

The affidavit describing "On White Satin" was prepared by two police officers, who dictated a description of the entire film into a tape recorder while they viewed the film from front row seats in the defendant's theatre. The affidavit describes each scene in the movie in exhaustive detail, and notes the approximate length of each scene. It reveals that almost the entire film consists of scenes of sexual conduct, as defined by G.L. c. 272, § 31, including graphic depictions of repeated acts of fellatio, cunnilingus, masturbation, and sexual intercourse. The affidavit provided a sufficiently detailed factual description of "On White Satin" to allow the magistrate to focus searchingly on whether the film was obscene, and fully supported the magistrate's finding of probable cause to believe that the film was obscene. Cf. Marcus v. Search Warrant of Property at 104 E. Tenth St., supra 367 U.S. at 731-732, 81 S.Ct. at 1715-1716. Contrary to the defendant's assertion, further description of the film, addressing other elements of the three-part definition of obscenity, was not necessary. As the United States Court of Appeals for the Fifth Circuit observed in a similar case, "[a] showing of '[p]robable cause' requires much less evidence than a finding of guilt requires ... for '[i]n dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act' " (citations omitted). United States v. Middleton, 599 F.2d 1349, 1356 (5th Cir.1979), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). See Commonwealth v. Mascolo, supra. Similarly, we reject the argument that because the police affidavit described "Ganster Girl" as depicting sexual acts similar to those in "On White Satin," and the jury found that "Gangster Girl" was not obscene, the affidavit describing "On White Satin" was insufficient to support a finding of probable cause.

We reject the defendant's contention that a magistrate must view a film in order to find probable cause to seize it. A properly detailed affidavit provides a sufficient factual basis to allow a magistrate to focus searchingly on the question whether there is probable cause to believe that a film is obscene. United States v. Middleton, 599 F.2d 1349, 1356 (5th Cir.1979). United States v. Christian, 549 F.2d 1369, 1371 (10th Cir.), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977). United States v. Marks, 520 F.2d 913, 917 (6th Cir.1975), rev'd on other grounds, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). United States v. Sherpix, Inc., 512 F.2d 1361, 1368-1369 (D.C.Cir.1975). Commonwealth v. Mascolo, 6 Mass.App. 266, 269, 375 N.E.2d 17 (1978). State v. Conaughty, 561 P.2d 554, 555 (Okl.1977). ²

The magistrate issued a search warrant authorizing the seizure of "the motion picture film entitled 'On White Satin,' and any and all records relating to the production, manufacture, distributing, rental or purchase of the film entitled 'On White Satin' ...." The defendant argues that the police exceeded the scope of the warrant by seizing from the lobby wall a poster advertising "On White Satin." We do not decide whether the seizure of the poster violated "the constitutional requirement that warrants must particularly describe the 'things to be seized' [which] is to be accorded the most scrupulous exactitude when the 'things' are books [or movies], and the basis for their seizure is the ideas which they contain," Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965), because any error in the admission of the...